Skains v. Barnes

• Decision Date: 10 February 1910
• Parties: SKAINS v. BARNES.
• Court: Alabama Supreme Court

53 So. 268

168 Ala. 426

SKAINS v. BARNES.

Supreme Court of Alabama

February 10, 1910

Rehearing Granted July 6, 1910.

Appeal from Chancery Court, Crenshaw County; L. D. Gardner Chancellor.

Bill by Amos Skains against J. M. Barnes for specific performance and to redeem. From a judgment sustaining demurrer to the bill complainant appeals. Reversed, rendered, and remanded.

Dowdell C.J., and Mayfield and Evans, JJ., dissent.

L. A. Sanderson and Gunter & Gunter, for appellant.

M. W. Rushton, for appellee.

McCLELLAN J.

The original bill sought the specific performance of a contract; but by amendment alternative relief was sought on the theory that the same transaction was of mortgage and in this aspect redemption was prayed for. The original bill was filed before the Code of 1907 (section 3095 as amended) went into effect. The amendment indicated was made after the cited statute became effective. That statute, as amended, reads: "Unless taken by demurrer, objection to a bill for multifariousness must not be entertained. A bill is not multifarious which seeks alternative or inconsistent relief growing out of the same subject-matter or founded on the same contract or transaction, or relating to the same property between the same parties."

Unless inhibited by section 10 of the Code of 1907, or by this provision in section 95 of the Constitution of 1901, "after suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit" (italics supplied), it is obvious that the quoted statute (3095) applied to the bill at bar so as to render it immune from demurrer on the ground of multifariousness after amendment. Section 10 provides: "This Code shall not affect any existing right, remedy, or defense. * * * But this section does not apply to changes in forms or remedy or defense, to rules or evidence, nor to provisions authorizing amendments of process, proceedings or pleadings in civil causes. * * *" As respects the effect of section 10 upon the applicability of section 3095 to this cause, after amendment of the bill as indicated, it is further obvious that the inquiry must be resolved by the response to the question: Is multifariousness a defense, or is it a matter of pleading merely? The inquiry is likewise controlled in determination by the factor present in section 95 of the Constitution of 1901. In both particulars the conclusion must be cast by the response to the question stated above. Gould's Pleading, in section 15, p. 32, thus defines the term "defense": "It is almost unnecessary to observe that in a less technical sense the word 'defense' is used, as well in legal as in popular language, to signify, not a clause or form in pleading [[italics supplied], but the subject-matter of the plea. Thus, if to an action on contract the defendant plead infancy, or to an action of trespass, a license, infancy, in the one case, and a license, in the other, is called defense." Gould's definition, quoted, was appropriated and approved by the New York court in Houghton v. Townsend, 8 How. Prac. 441.

The Nebraska court has thus defined the word: "The word 'defense' applies to every matter tending to diminish or entirely defeat the plaintiff's cause of action [italics supplied]." Baier v. Humpall, 16 Neb. 127, 20 N.W. 108.

The South Carolina court, in interpreting the phrase employed in the Constitution, "shall be no defense to an action," held it to mean, "shall not defeat an action"; and added this to the statement: "The Constitution did not intend to deal with pleadings, but with a principle of law." Youngblood v. S. C. Ry., 60 S.C. 9, 38 S.E. 232, 85 Am. St. Rep. 824.

At common law, strictly speaking, a distinction was taken between a denial and a "defense." A denial was said, in effect, to be a traverse only of the complaint. On the other hand, a "defense" was said "to consist of an affirmative statement of new matter only." 13 Cyc. pp. 762, 763, and notes; Gould's Pleading, pp. 28-32.

The Iowa court in Haywood v. Seeber, 61 Iowa, 574, 576, 16 N.W. 727, 728, declared: "A defense denies the right of recovery, and shows that the plaintiff never had a cause of action, or that it has been discharged, as by payment. * * *" This pronouncement was reiterated in Yarger v. Chicago R. Co., 78 Iowa, 650, 651, 43 N.W. 469.

From these definitions of the term "defense," whether it be read with the strictness early prevailing at common law or with the more comprehensive meaning given the term by Gould in the quotation before made from that author, or with that favored and announced in the...